Article 1: Applicability

1.1 The Client is the natural or legal person using these General Purchasing and (Sub)contracting Conditions. The other party shall hereinafter be referred to as the Contractor. In these conditions, the term “the work” shall also include the performance of services.

1.2 Articles 1 through 16 of these conditions apply to all quotations made to the Client, to all agreements concluded with the Client and to all agreements arising therefrom. If the quotations or concluded agreements also or exclusively concern (sub)contracting of work and/or the performance of services, Articles 17 through 22 of these conditions shall also apply.

1.3 Any deviations from these General Purchasing and (Sub)contracting Conditions shall only be valid if they have been confirmed in writing by the Client to the Contractor.

1.4 In the event of any conflict between the content of the agreement concluded between the Client and the Contractor on the one hand and these general conditions on the other, the provisions of the agreement shall prevail.

 

Article 2: Costs of quotations

 

Any costs related to submitting quotations, offers and price proposals, including the costs of advice, drawings, etc. prepared by or on behalf of the Contractor, shall not be reimbursed by the Client.

 

Article 3: Delivery period and penalty

3.1 The agreed delivery time and/or execution period are considered strict deadlines. If these deadlines are exceeded, the Contractor shall be in default without any further notice of default being required. As soon as the Contractor has reasons to assume that he cannot deliver, cannot deliver on time or cannot deliver properly, he must notify the Client without delay.

3.2 The Contractor is liable for any damage suffered by the Client as a result of exceeding the deadlines referred to in Article 3.1.

3.3 For each day by which the delivery time is exceeded, the Contractor shall owe the Client an immediately payable penalty of 1% of the agreed order amount, up to a maximum of 5% of the order amount.

3.4 The penalty described in Article 3.3 may be claimed in addition to compensation and supplementary damages under the law. The Client is entitled to set off this penalty and/or such damages against the amounts owed to the Contractor.

 

Article 4: Prices

4.1 The prices stated in the quotation are based on delivery DDP (Delivered Duty Paid) at the agreed delivery address in accordance with Incoterms 2010. All prices are fixed, net, free of duties and taxes and include adequate packaging.

4.2 Price increases shall be for the account of the Contractor, even if they occur after the conclusion of the agreement. This applies regardless of the period of time between the conclusion of the agreement and its execution.

 

Article 5: Transfer of risk

5.1 Delivery of the products shall take place DDP (Delivered Duty Paid) at the agreed address in accordance with Incoterms 2010.

5.2 If delivery “ex works” has been agreed and the Contractor nevertheless arranges or undertakes transport, the risk of loading and transport shall remain with the Contractor.

5.3 If the products are collected on behalf of the Client, the Contractor shall assist with loading free of charge.

 

Article 6: Inspection, examination and testing

6.1 The Client, its principal and the Site Management of the work are at all times entitled to inspect, examine and test the products ordered and/or delivered by the Client and the work and its execution. The Contractor must provide any facilities that may reasonably be required for this purpose.

6.2 The costs of the inspection, examination and testing referred to in Article 6.1 shall be borne by the Contractor if the Client and/or its principal and/or the Site Management reject these products/the work. Inspection or approval does not release the Contractor from any warranty or liability arising from these Purchasing Conditions, the agreement or the law.

 

Article 7: Rejection

7.1 If the products/the work delivered by the Contractor do not meet the requirements set out in the order and/or the specification, the Client is entitled to reject them. Acceptance or payment of the products and/or the work does not imply approval. Even after approval, all costs and risks remain for the account of the Contractor.

7.2 If the Client rejects products and/or the work delivered by the Contractor, the Contractor must, within a period set by the Client:

• repair the products/the work free of charge or, at the Client’s discretion;
• replace the products free of charge and/or (have) the work carried out in accordance with the agreement.

7.3 If the Contractor does not, not within the set period or not to the satisfaction of the Client, fulfil the obligation referred to in Article 7.2, the Client is entitled to carry out the actions referred to in Article 7.2 itself or have them carried out by a third party, at the expense of the Contractor. The Client is entitled to set off the costs incurred in this respect against the amounts owed to the Contractor.

 

Article 8: Intellectual property rights

8.1 “Intellectual Property Rights” shall include, among other things, copyrights, database rights, design rights, trademark rights and patent rights, as well as the right to obtain such rights by application, filing, registration or otherwise.

8.2 “Intellectual Property Rights to the Work” shall mean all Intellectual Property Rights to the work, to the products and to the tools such as drawings, models, moulds and tools that arise during or for the purpose of the performance of the agreement between the Contractor and the Client.

8.3 All Intellectual Property Rights to the Work are vested in the Client. The Contractor hereby, insofar as possible, transfers these rights in advance to the Client and shall, at the first request of the Client, promptly perform all additional acts required for such transfer.

8.4 The Client does not owe the Contractor any compensation for (the transfer of) the Intellectual Property Rights to the Work.

8.5 The Contractor waives its moral rights as referred to in Section 25(1)(a) of the Dutch Copyright Act. Insofar as changes to the work, the products or their name are concerned, the Contractor also waives its moral rights as referred to in Section 25(1)(b) and (c) of the Copyright Act. The Contractor shall not invoke the authority granted in Section 25(4) of the Copyright Act.

8.6 The Contractor warrants that the products to be delivered by him, the work to be performed by him and the Intellectual Property Rights to the Work do not infringe any third-party rights, including intellectual property rights, and indemnifies the Client against all claims in this respect. The Contractor shall compensate the Client for all damage resulting from any such infringement.

 

Article 9: Confidentiality

9.1 All confidential information – meaning all information, documents, drawings, know-how and knowledge – in whatever form, provided by the Client to the Contractor, shall be kept strictly confidential by the Contractor and shall not be disclosed to third parties or used by the Contractor for any purpose other than the performance of its contractual obligations.

9.2 The confidential information referred to in Article 9.1 shall not, without the express written consent of the Client, be disclosed directly or indirectly to any third party. If the Contractor needs to provide confidential information to its employees in the context of the agreement, the Contractor is obliged, before providing such information, to bind these employees to the same duty of confidentiality as laid down in this agreement.

9.3 If the Contractor must provide the confidential information referred to in Article 9.1 to any third party or parties in connection with the performance of its contractual obligations, it shall bind such parties to the same confidentiality obligations as stipulated in this article.

9.4 The Contractor shall owe the Client an immediately payable penalty of 25% of the total order amount, with a minimum of €10,000, and a penalty of €1,000 per day for as long as the breach continues.

9.5 The penalty referred to in Article 9.4 may be claimed in addition to compensation and supplementary damages under the law. The Client is entitled to set off this penalty and/or these damages against the amounts owed to the Contractor.

 

Article 10: Non-competition

Without the prior written consent of the Client, the Contractor shall fully refrain from making offers and/or quotations, whether directly or through third parties, to the Client’s principal in relation to the work.

 

Article 11: Tools and equipment

11.1 All tools and equipment such as drawings, models, moulds, dies and tools that the Client makes available to the Contractor for the performance of the agreement shall remain or become, in all cases, the property of the Client. This also applies to tools that are specially manufactured by the Contractor within the framework of the agreement, irrespective of whether the costs thereof are charged to the Client.

11.2 All tools and all copies thereof must, at the first request of the Client, be made available to or returned to the Client.

11.3 At the request of the Client, the tools must be clearly and indelibly marked as the property of the Client. The Contractor shall point out the Client’s ownership of these tools to any third party that wishes to levy attachment on them.

11.4 Without prejudice to the provisions of Article 9, the Contractor shall not use the tools for any purpose other than the performance of its contractual obligations. The Contractor shall not show the tools to third parties without the express written consent of the Client. The Contractor bears the risk of loss of and/or damage to the tools and is obliged to insure these risks at its own expense.

 

Article 12: Liability

12.1 The Contractor is fully liable for all direct and consequential damage arising from an attributable failure or unlawful act by the Contractor, its personnel or auxiliary persons engaged by it. This also includes damage arising from the presence, use, delivery or removal of items belonging to the Contractor, its personnel or other persons engaged by it at the work location.

12.2 The Contractor indemnifies the Client fully against claims from third parties for compensation of damage as referred to in the first paragraph.

 

Article 13: Insurance

At the first request of the Client, the Contractor shall demonstrate to the satisfaction of the Client that it has, at its own expense, taken out adequate insurance for all damage which the Client may suffer as a result of acts or omissions of the Contractor and/or third parties engaged by it.

 

Article 14: Warranty

14.1 The Contractor warrants that all products/works supplied by it shall, for a period of 12 months after commissioning or for a maximum of 18 months after delivery, be free from defects in material, design and workmanship and shall fully comply with the agreement.

14.2 The Contractor shall remedy immediately, and in consultation with the Client, all defects in the products/the work that become apparent within the period referred to in Article 14.1, or, at the Client’s discretion, replace the defective products, the work or parts thereof.

14.3 All costs related to the repair or replacement of the products/the work shall be borne by the Contractor. These costs include, among other things, the costs of returning the products/the work to operation after such repair or replacement. If the products/the work form part of a larger whole, the costs of returning that whole to operation shall also be borne by the Contractor.

14.4 If the Contractor does not fulfil its obligations as described in this article, the Client shall be entitled to carry out the necessary work itself or have it carried out by third parties, at the risk and expense of the Contractor. The Client is entitled to set off the costs incurred in this respect against the amounts owed to the Contractor.

 

Article 15: Payment

15.1 Payment shall be made within the agreed payment term of 60 days after the invoice date, unless the Client, after receipt of the products – including the corresponding documents – has a complaint regarding the quantity and/or quality or rejects the shipment.

15.2 In the event of advance payment or payment in instalments, the Client is entitled to require sufficient security for delivery. If the Contractor does not provide such security within the specified period, it shall be in default with immediate effect. In that case, the Client is entitled to dissolve the agreement and recover the damage resulting therefrom from the Contractor.

15.3 The Client is at all times entitled to set off mutual claims.

15.4 The Client reserves the right to pay the social security contributions and wage tax for which it is jointly and severally liable under the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act into the Contractor’s blocked account or directly to the Tax Authorities on behalf of the Contractor.

15.5 Without prejudice to the provisions of the previous paragraph, the Client is at all times entitled to deduct the amounts referred to in that paragraph from the (sub)contract sum and to pay these directly to the Tax Authorities.

 

Article 16: Applicable law and choice of forum

16.1 The agreement is governed exclusively by Dutch law.

16.2 The Vienna Sales Convention (CISG) and any other international regulations whose exclusion is permitted do not apply.

16.3 Only the Dutch civil court in the district in which the Client is established is competent to hear disputes, unless mandatory law prescribes otherwise. However, the Client is entitled to deviate from this jurisdiction rule and to apply the statutory rules of jurisdiction. The parties may agree on another form of dispute resolution, such as arbitration or mediation.

 

(SUB)CONTRACTING / SERVICES

Article 17: Prohibition on transfer/pledging

The Contractor is not entitled to transfer, pledge or otherwise assign the claim relating to social security contributions and wage tax included in the contract sum, for which the Client is jointly and severally liable under the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act.

 

Article 18: Obligations of the Contractor

18.1 The Contractor is obliged to:

1. hold a valid registration certificate from the Employee Insurance Agency (UWV), insofar as such is issued, and to present this at the Client’s request;
2. provide, at the request of the Client, a recent (no older than three months) extract from the Trade Register of the Chamber of Commerce;
3. provide the Client with a list of all employees who will be deployed for the work and, prior to the start of the work, provide a copy of a valid identity document for each employee and, upon request, payroll records;
4. keep a man-hours register stating, for each employee, the name, social security number, address, place of residence, date of birth, number of hours worked and the dates on which work was performed;
5. strictly comply with all obligations towards its employees;
6. strictly comply with all statutory obligations relating to the payment of social security contributions and wage tax in respect of the work assigned and apply the applicable collective labour agreement correctly;
7. periodically provide a statement regarding the payment of wage tax and social security contributions, in accordance with the guidelines applicable within the framework of the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act;
8. draw up weekly reports, at the request of the Client, according to a model approved by the Client and submit these completed and signed reports weekly to the Client for approval;
9. if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable, organise its administration in such a way that the following information can be immediately retrieved:

– the agreement and its content on the basis of which the work was carried out;

– the data relating to the performance of the obligations under the agreement, including the registration of the persons deployed and the days/hours during which those persons performed the work;

– the payments made in the context of the agreement;

10. provide the Client, upon request, with all information required for the administration of the Client or its principal;
11. if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable, possess the original blocked-account agreement and present it at the Client’s request, unless the parties have agreed that the Client will deposit directly into the account held for the Contractor by the Tax Authorities.

18.2 As long as the Contractor has not, or not fully, complied with the obligations referred to in paragraph 1, the Client shall only be obliged to make payment after it has received all missing data and processed these administratively and/or the Contractor has fully complied with its other obligations.

 

Article 19: Organisation of the work

19.1 The Contractor is obliged to strictly follow the instructions and directions of the Client.

19.2 The Client is entitled to deny employees of the Contractor access to the work or to remove them from the work due to unsuitability, misconduct, disorderly behaviour, etc., without the Contractor being entitled to compensation of any costs or damage.

19.3 The working hours, breaks, recognised public holidays, vacation days and other days off applicable at the construction site also apply to the Contractor and its employees. The Contractor cannot derive any right to compensation for damage or additional costs from this vis-à-vis the Client. The same applies if the services of the Contractor cannot be used as a result of strikes or other causes at the Client or third parties.

19.4 Unless otherwise agreed, the Contractor is obliged to ensure that, from commencement until completion of the work, a permanent foreman is present at the construction site with whom both organisational and technical arrangements can be made. The name of the foreman must be known to the persons or institutions designated by the Client.

19.5 The Contractor must provide its employees with appropriate personal protective equipment and ensure its (correct) use. The costs arising from this are for the account of the Contractor.

19.6 The required insurances, as well as any deductibles under any CAR insurance taken out for the work, shall be for the account of the Contractor.

19.7 The Contractor must deploy sufficient personnel to ensure that the execution of the work is fully aligned with the schedule drawn up by the Client and to prevent other work from being delayed. If the Client changes the schedule, the Contractor is obliged to adapt accordingly. Changes in staffing are only permitted with the prior consent of the Client.

19.8 For work equipment supplied by the Contractor that falls under the Dutch Motor Insurance Liability Act (WAM), the Contractor must take out WAM insurance. If such equipment is rented, the Contractor must ensure that it is insured in accordance with the WAM. In addition, the Contractor must take out adequate insurance for the operational risks of the motor vehicles it uses.

19.9 The Contractor is obliged to locate, in good time, the position of cables, pipelines and other above-ground and underground property of third parties and to inform the Client immediately of any damage caused.

19.10 Required materials such as scaffolding, aerial work platforms, lifting equipment, small tools, hand tools, measuring equipment, mobile scaffolds, ladders and stepladders must be supplied by the Contractor and are included in the contract price.

19.11 If work has to be carried out on or to parts of the work that have already been finished, such as plastered walls, tiling or paintwork, the Contractor must take protective measures to prevent damage and/or contamination. Any damage and/or contamination found during or after the work shall be deemed to have been caused by the Contractor.

19.12 Upon completion of the work, the Contractor must deliver the work broom-clean and leave the work site tidy.

 

Article 20: Invoicing

20.1 Without prejudice to the provisions of Article 18.2, the Client shall only approve an invoice for payment if the work, or the part to which the instalment relates, has been carried out to its satisfaction and the invoice meets the requirements specified in Article 20.2.

20.2 The invoice must comply with the statutory requirements of the Dutch Turnover Tax Act. The Contractor must, in any case, clearly and in an orderly manner state the following details:

1. invoice date;
2. consecutive invoice number;
3. name and address of the Client;
4. name and address of the Contractor;
5. the number of the agreement;
6. the work and the location(s) where the work has been carried out to which the invoice relates;
7. the period and nature of the work to which the invoice relates;
8. the number of man-hours worked, the amount of labour costs and (separately) the percentage of wage tax included in the labour costs, if the Wages and Salaries and Social Security Contributions (Liability of Subcontractors) Act is applicable;
9. the statement of VAT or the application of the reverse-charge mechanism and, in the latter case, the amount of VAT;
10. the VAT identification number of the Contractor;
11. the VAT identification number of the Client if VAT payment has been shifted to the Client;
12. a specification of the invoice amounts by VAT rate and a breakdown into unit prices and any discounts applied.

 

Article 21: Regulations and statutory provisions

21.1 The Contractor must comply with all statutory and other regulations, conditions and provisions applicable to the work under the main contract between the Client and its principal.

21.2 The Contractor must, at its own expense, obtain all permits and take all safety measures required for the work.

 

Article 22: Performance by third parties

22.1 Without the prior written consent of the Client, the Contractor is not entitled to transfer the order or any part thereof to a third party or to subcontract it.

22.2 If, after obtaining consent, the Contractor subcontracts (part of) the work to a third party, it must conclude a written agreement with this third party, the content of which corresponds to the agreement between the Client and the Contractor. In that relationship, the Contractor and the third party shall take the legal positions of Client and Contractor respectively.

22.3 Subcontracting does not affect the obligations of the Contractor under the agreement with the Client.

22.4 Without prejudice to the provisions of Articles 22.1 to 22.3, the Contractor is not entitled to use personnel made available by the Client without the prior written consent of the Client. If there is subcontracting or hiring-in of personnel, the Contractor is obliged to comply with the administrative regulations under the “Uitvoeringsregeling inleners-, keten- en opdrachtgeversaansprakelijkheid 2004” (Implementation Regulation for Hirer’s, Chain and Principal’s Liability 2004).

These conditions are a complete translation of the Dutch text of our “General Purchasing and (Sub)contracting Conditions” as filed with the Chamber of Commerce in Arnhem. Explanation and interpretation of these conditions shall be based on the Dutch text.